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In re D.L.N.G.

Court of Appeals of Texas, Fifth District, Dallas

July 17, 2019


          On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-17-01185

          Before Justices Whitehill, Molberg, and Reichek



         Mother appeals the trial court's final order naming foster parents as permanent managing conservators of her son, D.L.N.G., a child of American Indian heritage, and giving her visitation as arranged and agreed by the foster parents. In three issues, Mother contends the trial court failed to comply with mandatory provisions of the federal Indian Child Welfare Act of 1978 ("ICWA"), 25 U.S.C. §§ 1901-1963, and abused its discretion in finding that the foster parents should be named managing conservator rather than D.L.N.G.'s maternal grandmother and in ordering "nonspecific" access to the child. Because we conclude the trial court failed to comply with the ICWA, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

         Factual Background

         In October 2017, the Department of Family and Protective Services received a referral alleging neglectful supervision of three-month-old D.L.N.G. by Mother, who at the time lived with her mother (Grandmother). The report stated that the child's home conditions were poor, with boxes stacked everywhere, nine dogs, and dog feces on the floor. The report also alleged drug use in the home.

         A caseworker went to the house the next day. Mother agreed the home was "unfit" for her and her child to live in and did not want the caseworker to enter the home because of its condition. Mother agreed to drug testing. After she tested positive for marijuana, amphetamines, methamphetamines, and cocaine, the Department filed an original petition for protection of the child, for conservatorship, and for termination in suit affecting the parent-child relationship. D.L.N.G. was removed from the home and placed in foster care. Sometime after removal, the Department learned D.L.N.G. had an American Indian child status confirmed by the Hopi Tribe.[1]

         A trial before the court was held one year later. Mother did not attend because she was in the hospital giving birth to a child, but she was represented by counsel. The Department was no longer seeking termination but presented the court with two non-termination options: placement with Grandmother or placement with the foster parents. Three witnesses testified--the caseworker assigned to D.L.N.G., a tribal representative, and Grandmother. Arabia Reed, the caseworker, testified the Department became aware early on that the case fell within the ICWA and had continuing communication with Tonya Monroe, the tribal representative. Mother objected to application of the ICWA to her case because a federal district judge in Texas had ruled it unconstitutional just days before.[2] The trial court responded that at the time of foster placement, the ICWA applied "[s]o we are going back to the evolution of this case."

         There was little evidence adduced at trial about Mother, who Reed said had been performing her court-ordered services but had not completed them. Mother had tested positive for marijuana, but Reed did not identify a time frame. According to Reed, the Department was not considering return of D.L.N.G. to Mother. Reed agreed that it was the Department's position that "the appointment of a parent as Managing Conservator at this time would significantly impair either the physical health or emotion development" of the child and would not be in the child's best interest "at this time."[3]

         The majority of the evidence focused on Grandmother as a possible placement option. The Department conducted a home study on Grandmother a month before trial and, based on the assessment, approved Grandmother for placement of D.L.N.G. The twenty-page assessment identified both strengths and weaknesses of Grandmother and her live-in boyfriend and noted that Grandmother's home, which she had recently purchased, was "very clean" and "well kept." The report also noted that Grandmother had four dogs, instead of nine. At trial, Reed said that since its approval, the Department developed "some concerns" prompted by the guardian ad litem, who had made an unannounced visit to Grandmother's home the week before and found five dogs in the house, trash bags of clothing on the porch, and cigarette butts on the ground near the porch. The Department was concerned that Grandmother "could go back to that nasty lifestyle" but did not withdraw its approval of Grandmother. Reed said there had been no problems with the foster care placement and described foster parents' interactions with D.L.N.G. as "[l]oving, caring."

         Monroe, the tribal representative, testified by telephone. Again, Mother renewed her objection based on the federal district court ruling on the ICWA. The trial judge said she would "decide before making a ruling about what weight, if any, to be given to . . . her testimony or whether the ICWA standard at all should apply." The trial judge then asked Monroe her "association with the tribe," but Monroe indicated she could not hear the question, and the trial judge moved on without obtaining an answer.

         Monroe said she reviewed the home study on Grandmother and, although the tribe initially approved placement with her, changed her mind after hearing from the guardian ad litem. Monroe said the tribe objected to the dogs in the home. She explained that when D.L.N.G. was removed, there were nine dogs in the house, which was "filthy" and had "feces all over." She had received a copy of the subsequent home study and pictures, but was concerned the house was "going to be in the same condition as it was at the time of removal." She explained that although the home study showed Grandmother had four dogs, there were five dogs during the guardian ad litem visit. Grandmother explained that the dog was "visiting," but Monroe questioned whether it was in the home permanently. Monroe said she could not "put a child, a healthy child, back into the situation this child was removed from." In particular, she noted that the child was in Grandmother's home when he was removed. Monroe said the tribe believed it was in the child's best interest to remain in the current foster placement, with Mother's rights "still intact," and that any visitation and access be supervised by the foster parents or their competent designee. She acknowledged that she had not met the foster parents or seen their home.

         The final witness was Grandmother, who testified about the condition of her home at the time of removal, the condition of her new home at the time of trial, and explained the circumstances of some of the causes for concern represented in the home study. She testified there was a fifth dog in the house when the guardian ad litem visited, but she was only watching the dog for a friend. As for the bags on the porch, Grandmother said she only recently moved into her house and had pulled the bags out of storage the day before the ad litem's visit. The bags were filled with clothing that she needed to go through and wash. Grandmother also said she had picked up the cigarette butts from the yard and placed a container on the porch to discard them in the future. Grandmother said she and her boyfriend both smoke, but neither smokes in the house.

         After hearing the evidence, the trial court took the case under advisement before orally finding that "custody with an Indian parent or relative would result in serious emotional or physical danger to the child" and that placement with a parent "would significantly impair the physical health or emotional development of the child." The trial court determined that placement with the foster parents was in the child's best interest. The trial court named the foster parents as permanent managing conservators and Mother as possessory conservator with access supervised by the foster parents and discharged the Department from the case. In its ...

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